Sheffield Occupational Health and Safety Association :: View topic - What does Reasonably Practicable Mean?

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D.Emblen
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PostPosted: Wed Aug 01, 2007 4:39 pm Reply with quote Back to top
Hi
I was interested to read a report where the HSE are prosecuting a Traffic Management firm from Newcastle after the death of two of its employees and offer this as a discussion topic. Sorry its such a long post.

At the original trial in Teesside the company argued a defence that what happened could not have been foreseen, that the contributory actions by the employees were outside their remit and contrary to warning signs posted. The HSE said that unforseeability is irrelevant and that the company should have taken steps to protect employees against unforeseen risks, and set out against reg 21 of the management of Health and Safety at Work Regulations 1999, will not afford an employer a defence.

The Judge in his preliminary findings ruled that evidence of forseeability is admissible when considering what is reasonably practicable for the purposes of discharging duty under Sect s2(1) HSAWA and that reg 21 HSWR does not preclude a defendant advancing evidence of any act or default of an employee.

The HSE have appealed to the court of appeal on these two points but it was quashed although they acknowledged it was an important issue. The HSE then sought leave to appeal to the House of Lords but were refused, putting the case back to the Teesside Judge.

The judge ruled that HSE hadn’t particularised its case ie, it did not detail reasonable and practical steps the company could have taken to prevent the incident. Consequently the case has been rescheduled for January 2008.

If I have got this right the implication is that the HSE should have set out what would have been reasonable and practical in this case, to protect employees against the unforeseeable. It effectively reverses the burden of proof as set out in s40 HSAWA making the prosecution rather than the defence, list the reasonably practical steps. I believe the HSC have issued a paper to say that this case will have limited impact, however I think the next few cases through courts could be interesting if defence lawyers pick up on the ruling.

What do you think

Dave Emblen
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C.Jerman
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PostPosted: Thu Aug 02, 2007 9:17 am Reply with quote Back to top
Hi Dave. I'd really like to read the surrounding story to this one, but in effect what they seem to have invented is 'reasonably foreseeable with hindsight' could point me in the direction of a link?

'Foreseeable' is an absolute, as is practicable. In other words if someone can think of it with no limits then we'd have to protect against it. So have we all got our 'alien invasion' plans on stand by? I think not, because we are only obliged to consider the reasonably foreseeable. So what is reasonableness in relation to foreseeability?

This is a moveable feast and has 3 principal stages -
general knowledge - the man on the Clapham Omnibus,
technical knowledge - what people like us in our field should know
expert - a demonstrable leader in the field

What each of the 3 domains would knowingly be able to anticipate would be different about the same subject is still limited by the passage of history and it is encumbant on each of them to remain up to date.

It would have to be argued what the company would have to know (whether it did or not) about what its emplyees did. The more core the activity to their business, the more that they should know.

So reasonableness is very strongly linked to competency, not merely individual competency, but organisational competency. What seems to have happened (from the little I have read in your question) is that once the event happened, it was deemed that actually, with hindsight, whether they had predicted it or not, they really should have done.

Reasonable practicability is cost versus risk analysis based upon who you are and what you are trying to achieve as an organisation.

Keep the discussion going. It's a good one.

Chris
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C.Jerman
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PostPosted: Thu Aug 02, 2007 9:21 am Reply with quote Back to top
Additionally of course, if there were warning signs, that's an acknowledgement of the problem (ie reasonably foreseeable) and therefore should have considered the implications of people not folloing the signs.

Having a sign saying "Warning live cables - do not touch" is not a control.
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D.Emblen
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PostPosted: Fri Aug 03, 2007 3:49 pm Reply with quote Back to top
It came from an article in Hefma (West Midlands) Newsletter for Subscribers to the Health and Safety Rules for Trades Staff, Issue 81 – July 2007. It was a report where the HSE is prosecuting Newcastle firm, Hatton Traffic Management Ltd (HTM), under s2(1) of the Health and Safety at Work, etc. Act 1974, after two of its employees died when equipment they were using as part of a job to resurface the A66 near Scotch Corner came in contact with an overhead power cable. Unfortunately that was as much detail as was given regarding the incident.

However in response I would have thought that the issue of competency and supervision could have been more of an issue than what has been indicated. I’ll try a legal contact to see if they can access any more information.

I just liked the article in the light of the HSE's current vision of ‘sensible health and safety’ they seem to have got into the sort of twisted mess we who manage health and safety, can from time to time find ourselves in. pending the outcome I'll put a hold on the printer who is printing 'T' shirts that say ‘suitable and sufficient, reasonable and practicable - That’s the way to do it'.

To add to the debate I see a deal has been done with the House of Lords on the Corporate Manslaughter Bill. It is to cover people who are detained in Police cells, Prisons and Young Offender Centres. It is also to include people who are held on sections or detained under the Mental Health Act. The NHS is going to have to sort that one out

Dave .
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C.Jerman
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PostPosted: Fri Aug 03, 2007 4:13 pm Reply with quote Back to top
Dave, get me one of those T shirts in XXFB size. Can I have "Go and boil your head in a bucket" printed on the reverse?

Chris
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C.Jerman
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PostPosted: Mon Aug 06, 2007 3:44 pm Reply with quote Back to top
I've read a bit more in the SHP now on this one. Seems that HSE have taken a leave of their senses. I cannot understand why they'd say that employers had to take account of the unforeseeable? It sounds to me that this incident was in fact RF and the company is probably in the wrong, but it's the principle that I'm intersted in. We DO have to take account of the reasonably foreseeable normal and ABNORMAL that could occur in our businesses. But to take account of the foreseeably unforeseeable? Errm, now I'm lost!

Perhaps Diane may be able to shed some light. It could of course be a complete misquote.

C
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D.Etchell
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PostPosted: Tue Aug 07, 2007 1:23 pm Reply with quote Back to top
I think its a little early to make any comment as this case is still ongoing and as such, there will be additional information not available at this time.

Diane Etchell
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D.Emblen
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PostPosted: Wed Aug 08, 2007 12:16 pm Reply with quote Back to top
Hi Diane
I think you are right, I asked a law type friend and they basically said the same ie, it was too early and not enough information. However I did speak a psychologist who works for us to give me an opinion on the principle of being responsible for the unforeseen, she ask’d if it was something from Terry Pratchet’s Disc World, took some time to think about it and then promptly went off sick with stress (only joking about the last bit Diane).

The sad part in all this is that whatever the outcome, two people have lost their lives at work. It’s just frustrating that no matter how much we struggle with guidance and legislation things like this continue to happen.

PS What size T shirt would you like?

Dave.
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D.Emblen
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PostPosted: Tue Aug 14, 2007 4:11 pm Reply with quote Back to top
I know this a long post but in the light of this thread I just had to put it on. Even the EU are getting in on the act.

United Kingdom: VE Day For Reasonable Practicability
15 July 2007
Article by Rhian Gilligan and Rob Elvin
European Commission v United Kingdom

Last week, almost 10 years after the complaint was first intimated, the European Court of Justice (ECJ) dismissed the European Commission’s challenge that the UK had failed to appropriately transpose the EC Framework Directive on health and safety (89/391/EEC). In the process, the ECJ upheld one of the fundamental principles of UK health and safety law, the concept of reasonable practicability. The Commission argued that by qualifying employers’ duties in this way, the Health and Safety at Work etc Act 1974 ("HSWA") was incompatible with EC law because it restricted the requirement upon employers to safeguard the health and safety of their workers. The ECJ ultimately found that this was not so.
The legislation
Section 2(1) of HSWA states that "It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees".
The Commission contended that this provision was contradictory to the Directive. In particular:
• Article 4 requires that Member States shall take the "necessary steps to ensure that employers, workers and workers’ representatives are subject to the legal provisions necessary for the implementation of this Directive." Further, "Member States shall ensure adequate controls and supervision".
• Article 5 provides that "the employer shall have a duty to ensure the health and safety of workers in every aspect related to work."
The arguments
The Commission submitted that:
• Section 2(1) of the HSWA means that an employer is not liable for the risks that arise as a consequence of his undertaking if he is able to demonstrate that he took all reasonably practicable measures to ensure the health and safety of his employees in those circumstances. This imposes a qualification not present in, or intended by, the Directive.
• By limiting the duty in this way, the UK allows employers to escape liability if it can be proved that the adoption of measures that make it possible to ensure the safety and health of workers would have been grossly disproportionate in terms of money, time or trouble when balanced against the relevant risk.
The UK argued that:
• Notwithstanding the absolute terms in which the duty is expressed in the Directive, the obligation is a general one, to provide a safe workplace, not to guarantee "a risk free working environment".
• Nothing in the Directive imposes a no-fault liability on employers, and it is left to Member States to determine the extent of the employers’ liability in accordance with their duty under Article 4. The UK’s view was therefore that the automatic criminal liability imposed on UK employers subject to the narrowly defined ‘reasonably practicable’ defence gives suitable effect to Article 5.
Ruling
The salient points of the ECJ’s ruling are as follows:
• The Directive does not impose no-fault liability on employers. This proposition was supported by earlier guidance from the Advocate General and the legislative history of the Directive and its wording.
• The Commission had failed to show that the qualification of reasonable practicability limits the duty of employers to ensure the health and safety of their employees. Accordingly, the UK had appropriately implemented the provisions of Article 5(1).
• The Commission had not established to the requisite legal standard that, in qualifying the duty on employers to ensure the health and safety of workers by limiting the duty to what is reasonably practicable, the UK had failed to fulfil its obligations under Articles 5(1) and 4 of the Directive.
The action was therefore dismissed and the Commission ordered to pay the full costs of the UK Government in the case.
The impact
The ruling has been widely applauded by employers, regulators, ministers and practitioners alike. Lord McKenzie, Minister for Health and Safety called the decision "a victory for common sense", a sentiment echoed across the commercial and legal spheres.
Had the ECJ upheld the Commission’s complaint it is clear that major changes to existing health and safety law would have been required, imposing additional burdens on UK employers. Such a step would have been disproportionate and, importantly, unnecessary, particularly in light of the ECJ’s acknowledgment that the UK is consistently amongst the best performing Member States in terms of accident statistics.
The ECJ’s endorsement of the UK’s approach to the regulation of risks to employees is welcome and a signal that the pragmatic risk based system employed in this country is an appropriate transposition of Europe’s intentions. Notwithstanding the clear trend towards ever increasing fines fed by political and public pressure for corporate accountability this decision, coupled with that in the case of R v HTM [2006] EWCA Crim 1156 last year, is an important acknowledgement that this is still a country in which businesses can operate viably and safely.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Source Mondaq.com 14th August 2007
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D.Moore
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PostPosted: Wed Aug 29, 2007 11:04 am Reply with quote Back to top
Hi Everyone

Just to let you know that we have Paul Burnley from DL Piper speaking at the next meeting and he will address this topic

Cheers
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